Gingrich Leads Revolt Against Judges by Vowing to Ignore Court

By Greg Stohr -
Dec 21, 2011

Newt Gingrich, who says as president
he would ignore U.S. Supreme Court rulings he dislikes, has
plenty of company among Republican candidates in vowing to blow
up long-held premises of constitutional law.

Rick Perry is calling for judicial term limits. Michele Bachmann says she would invite a confrontation with the court
over abortion. Ron Paul would bar federal judges from hearing
many cases involving abortion, same-sex marriage and religion.

Almost a half century after Richard Nixon campaigned
against Supreme Court criminal-law rulings, Republican
presidential candidates have ratcheted their criticisms of the
judiciary to new levels in the 2012 campaign, sometimes drawing
rebukes from prominent lawyers in their own party.

In advance of the Jan. 3 Iowa caucuses, the candidates are
moving beyond objections to individual judges and rulings and
telling voters that they want to cut back the authority of the
government’s third branch and assert the supremacy of the
president and Congress on social issues.

“Republicans are starting to unite around the idea that
we’ve got to do something structurally to bring the courts back
within the bounds established by the Constitution,” says Robert George, a constitutional law professor at Princeton University
in New Jersey. George questioned the candidates at a Sept. 6
forum in South Carolina.

Voters’ Concerns

Reining in the judiciary is not an issue that tops voters’
concerns in public opinion polls. Still, it may have particular
resonance in Iowa, where social conservatives last year unseated
three state Supreme Court justices who supported a 2009 decision
allowing same-sex marriage. Gingrich backed the effort and a
charitable group he founded helped provide financing for the
campaign, R.C. Hammond, Gingrich’s spokesman, said.

The former House speaker and co-leader in primary national
polls with former Massachusetts Governor Mitt Romney, Gingrich
is making the judiciary a central campaign issue. He told
reporters in a Dec. 10 conference call he is “fed up with
elitist judges imposing secularism on the country and basically
fundamentally changing the American Constitution.”

As evidence, the former Georgia congressman points to a
2002 appeals court decision barring public-school teachers from
leading the Pledge of Allegiance with the words “under God”
and a June decision by a San Antonio judge barring student-led
prayer at a high school graduation. Both rulings were
unanimously reversed on appeal.

’Anti-American’

Gingrich says judges who issue “anti-American” decisions
should have to defend themselves before Congress -- or face
arrest if they fail to appear to do so. He says he would impeach
those judges and potentially abolish their courts.

Some of Gingrich’s proposals are drawing fire from fellow
Republicans. Two of former President George W. Bush’s attorneys
general, Michael Mukasey and Alberto Gonzales, last week told
Fox News that mandatory congressional testimony on rulings would
threaten judicial independence. Mukasey, who has informally
advised Romney, called Gingrich’s approach “outrageous.”

Edward Whelan, another former Bush administration official,
said in a blog post on National Review Online that Gingrich’s
plan to abolish judgeships is both unconstitutional and
“foolish.”

Co-Equal Status

The proposal “threatens to undermine his ability, if he is
elected president, to achieve real and readily attainable
progress in the war against liberal judicial activism,” wrote
Whelan, the president of the Ethics and Public Policy Center in
Washington.

Less controversial, at least among the Republican Party
base, are calls for the president and Congress to assert co-
equal status with the Supreme Court in interpreting the
Constitution.

At the Sept. 6 forum, Bachmann said she would support an
effort to end abortion rights -- and overturn the landmark 1973
Roe v. Wade decision -- by invoking Congress’ power to enforce
the 14th Amendment’s equal protection guarantee.

“If the Supreme Court, by a plurality of the justices, may
impose their own personal morality on the rest of the nation,
then we are quite literally being ruled by those individuals, as
opposed to giving our consent to the people’s representatives,”
said Bachmann, a Minnesota representative.

At the same event, Romney said he wasn’t “looking to
create a constitutional crisis.” Even so, Romney left open the
possibility that Congress and the president might take such a
step.

Abortion Restrictions

“It’s reasonable that something of that nature might
happen someday,” he said.

Paul would strip federal courts of jurisdiction over
certain types of cases, including challenges to state and local
abortion restrictions, marriage laws and religious displays.

The Texas representative said last month that legislation
he introduced in Congress could have “saved millions of lives”
over the past decade by letting abortion restrictions go into
effect.

Perry, the governor of Texas, says he would seek a
constitutional amendment imposing term limits for newly
appointed federal judges. The Constitution says federal judges
can keep their seats “during good behavior.”

The calls to limit judicial power stem in part from a re-
evaluation of the seminal 1803 Supreme Court decision Marbury v.
Madison, in which Chief Justice John Marshall said it is
“emphatically the province and duty” of the courts “to say
what the law is.”

Judicial Supremacy

Some legal scholars now say that ruling establishes only
that the Supreme Court can interpret the Constitution as needed
to resolve a legal case. Gingrich has endorsed that reasoning,
contending that Presidents Thomas Jefferson, Abraham Lincoln and
Franklin Roosevelt all took actions indicating they rejected
judicial supremacy.

Gingrich says the notion of judicial supremacy didn’t take
hold until 1958, when the high court unanimously ordered
Arkansas officials to obey the Brown v. Board of Education
school desegregation decision. In a 54-page position paper on
his website, Gingrich calls the 1958 decision “factually and
historically false.”

Gingrich’s attack on a legal pillar of the civil rights
movement is fueling criticism.

“It’s not just that his end proposals are radical,” says
Ian Millhiser, a policy analyst at the Center for American
Progress Action Fund, an advocacy group in Washington founded by
a Democrat. “The intellectual basis of his proposals are
shocking.”

Republicans could suffer under Gingrich’s approach. The
candidate’s reasoning would mean President Barack Obama could
try to ignore the Supreme Court next year, should the justices
declare the 2010 health-care law unconstitutional, George said.